Ontario landlords want to the right to ban recreational marijuana use in rental units, potentially leaving many marijuana users with few places to smoke.
Announced in the fall, legislation states that marijuana will only be allowed in private residences, banning its use in workplaces and public spaces. Medical marijuana will be permitted but only in areas where cigarette smoking is allowed.
Landlords argue that since buildings are not airtight, the smell of the smoke will enter other units, thereby infringing on tenants' right to clean air. Further, some claim that it would cost between $5,000 and $6,000 to remove the smell of marijuana from a unit.
Margaret Capes, adjunct professor of law at Western University, stated the province will not be able to change the existing Residential Tenancies Act to allow landlords to ban marijuana in current leases.
“A lease is a contract, and a contract is willingly entered into by two parties,” Capes said. “If existing tenants entered a lease and the lease doesn’t say they are prohibited from using medical or non-medical marijuana, then there should be no reason why they are disallowed.”
Capes says that if the province was to impose a new law in the middle of the existing leases, it could be challenged in court. Students should be aware that if there is no clause in their lease that bans smoking marijuana, then they are free to do so.
However, landlords could ban smoking in a building pending complaints from other residents. Legally, medicinal marijuana would have to be exempt.
“There is the potential for a human rights complaint if a building was to ban medicinal marijuana,” Capes said. “When it comes to the rights of a medicinal marijuana user versus the right of a tenant to clean air, the human rights tribunal will need to make a decision to decide which right is more important."
Jim Murphy, president and CEO of the Federation of Rental-Housing Providers of Ontario, argues that this issue is mostly between neighbours.
“Smoking is the number one cause of disputes between tenants,” Murphy said.
Sensitivity, asthma and allergies to smoke cause big issues among tenants in a building. The Landlord and Tenant Board has upheld that banning smoking cigarettes in a building is legal, but marijuana's pending legalization complicates the issue.
Murphy urges tenants to use edible marijuana within residences to respect their neighbors.
John Dickie, president of the Canadian Federation of Apartment Associations, argues that the province's new law banning smoking in public areas forces smokers into their residences, which creates the problem for landlords.
“We think the province should allow smoking in more common areas, pot lounges and provide places where people can smoke,” Dickie said.
Recreational marijuana use will be legalized in Canada by July.